| People v Dealmeida |
| 2015 NY Slip Op 00169 [124 AD3d 1405] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJose Dealmeida, Appellant. (Appeal No. 1.) |
Labe M. Richman, New York City, for defendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.),rendered March 23, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated and the matter is remitted to Oneida County Court for furtherproceedings on the indictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of criminal possession of a controlled substance in the seventhdegree (Penal Law § 220.03). In appeal No. 2, defendant appeals bypermission of this Court from an order denying his motion pursuant to CPL article 440seeking to vacate that judgment.
With respect to appeal No. 1, we reject defendant's contention that the plea wasrendered involuntary by County Court's failure to advise him of the immigrationconsequences of the plea. Assuming, arguendo, that due process required the court toapprise defendant of the immigration consequences of his misdemeanor plea (see People v Peque, 22 NY3d168, 197 n 9 [2013]), we conclude that the court fulfilled its obligation during theplea colloquy. The colloquy shows that "the court assure[d] itself that the defendantkn[ew] of the possibility of deportation prior to entering [the] guilty plea, [and therefore]the plea [is] knowing, intelligent and voluntary" (id. at 197). We likewise rejectdefendant's contention that he received ineffective assistance of counsel based on defensecounsel's alleged failure to advise him of the immigration consequences of the guiltyplea. Defense counsel indicated during the plea that there was a "risk of deportation"(Padilla v Kentucky, 559 US 356, 374 [2010]). We reject defendant's contentionthat defense counsel should have advised defendant that deportation was "virtuallymandatory," and we conclude that defendant was not denied effective assistance ofcounsel on this ground (seePeople v Galan, 116 AD3d 787, 789-790 [2014]; People v Montane, 110 AD3d1101, 1102 [2013], lv denied 22 NY3d 1089 [2014]).
We agree with defendant, however, that he was denied effective assistance ofcounsel based on defense counsel's failure to move to suppress the drugs that the policeseized from his person during a traffic stop. In a supporting deposition, a police officerstated that he stopped defendant's vehicle after observing defective brake lights, inviolation of Vehicle and Traffic Law § 375 (40). He observed thatdefendant was nervous, and defendant gave responses to questions concerning where hewas coming from and where he was going that did not make sense considering thedirection in which he was traveling. The officer ordered defendant out of the vehicle andasked him "if he had anything illegal on him," and defendant responded that he had"coke" in his pocket. The officer then searched defendant's pocket and retrieved whatwas later determined to be cocaine.
We conclude that defendant established that a motion to suppress would likely besuccessful, and that defense counsel had no strategic or other legitimate explanation fornot moving to suppress the evidence (cf. People v Morris, 117 AD3d 1580, 1581 [2014]; People v Johnson, 81 AD3d1428, 1428-1429 [2011], lv denied 16 NY3d 896 [2011]). The officer'squestion whether defendant had anything illegal on him constituted a level twocommon-law inquiry, which required a founded suspicion that criminal activity was afoot(see People v Loretta, 107AD3d 541, 541 [2013], lv denied 22 NY3d 1157 [2014]; People v Carr, 103 AD3d1194, 1195 [2013]; Peoplev Lowe, 79 AD3d 1676, 1676 [2010], lv denied 16 NY3d 833 [2011];see also People v Garcia, 20NY3d 317, 324 [2012]). Defendant's nervousness and discrepancies in describingwhere he was coming from and going are not enough to give rise to a reasonablesuspicion that criminal activity is afoot (see People v Banks, 85 NY2d 558, 562[1995], cert denied 516 US 868 [1995]; People v Milaski, 62 NY2d 147,156 [1984]; cf. Lowe, 79 AD3d at 1676-1677; see also Carr, 103 AD3dat 1195). We further conclude that defendant's contention survives his guilty pleainasmuch as defense counsel's error infected the plea bargaining process (see generally People vAtkinson, 105 AD3d 1349, 1350 [2013], lv denied 24 NY3d 958[2014]). We therefore reverse the judgment in appeal No. 1, vacate the plea, and remitthe matter to Oneida County Court for further proceedings on the indictment.
In light of our determination in appeal No. 1, we decline to review defendant'sremaining contention therein, and we dismiss as moot defendant's appeal from the orderin appeal No. 2 (see People vAdams, 15 AD3d 987, 987 [2005], lv denied 4 NY3d 851 [2005]).Present—Centra, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.